MTSC » Topics » 10. Amendment and Termination .

This excerpt taken from the MTSC 8-K filed Oct 28, 2008.

          10.         Amendment and Termination.

          10.1       Amendments.





              a.          The Company reserves the right to amend or modify, in whole or in part, any or all of the provisions of this Plan at any time by a written instrument approved by the Committee; provided, however, that, except as provided in subsection (b), no amendment or modification shall be made which will deprive any Participant or any Participant’s beneficiary of any vested benefits to which he or she is entitled under the Plan.





              b.          Notwithstanding the foregoing, the Company reserves the right to amend or modify, in whole or in part, any or all of the provisions of this Plan at any time by written instrument approved by the Committee to the extent the Committee determines in its sole discretion, to comply with the Code §409A, and regulations and other guidance promulgated thereunder, provided that such amendment will not result in taxation to any Participant under Code §409A. As a condition to receiving benefits under this Plan, each Participant is deemed to consent to any such amendment or modification, without further action, including any reduction in any benefits otherwise considered accrued and vested prior to the effective date of such amendment or modification.




          10.2        Termination. Continuation of the Plan is not assumed as a contractual obligation of the Company and the right is reserved by the Company, by written instrument approved by the Committee, to


at any time reduce, suspend or discontinue the Plan, provided no such reduction, suspension or discontinuance shall deprive any Participant or beneficiary of any benefits that become vested under the Plan. The Company, by written instrument approved by the Committee, may terminate the Plan and distribute all of the Accounts of the Plan under the following circumstances:






          a.          within 12 months following a dissolution taxable under Code §331 or with approval of a bankruptcy court under 11 U.S.C. §503(b)(1)(A), provided that the Plan Accounts are paid to the Participants and are included in the Participants’ gross income in the latest of (or, if earlier, the taxable year in which the amount is actually or constructively received):







            i)          the calendar year in which the plan termination and liquidation occurs; or







            ii)         the first calendar year in which the payment is administratively practicable.






          b.         by irrevocable action taken within the 30 days preceding or the 12 months following a Change in Control, provided the Company distributes all Plan Accounts (and must distribute the accounts under any Aggregated Plans which plan the Company also must terminate and liquidate as to each Participant who has experienced the Change in Control) within 12 months following the date of Company’s irrevocable action to terminate and liquidate the Plan and Aggregated Plans. Where the Change in Control results from an asset purchase transaction, the entity that is primarily liable after the transaction to pay the Participants’ Accounts shall exercise the discretion to terminate the Plan and distribute the Accounts.







c.         for any other reason in the Company’s discretion provided that:







            i)          the termination and liquidation does not occur proximate to a downturn in the Company’s financial health;







            ii)         the Company also terminates all Aggregated Plans in which any Participant also is a participant;







            iii)        the Plan makes no payments in the 12 months following the date of the Company’s irrevocable action to terminate and liquidate the Plan other than payments the Plan would have made irrespective of Plan termination;







            iv)        the Plan makes all payments within 24 months following the date of the Company’s irrevocable action to terminate and liquidate the Plan; and







            v)         the Company within 3 years following the date of the Company’s irrevocable action to terminate and liquidate the Plan does not adopt a new plan covering any Participant that would be an Aggregated Plan.

This excerpt taken from the MTSC 8-K filed Feb 7, 2006.





AMENDMENT OF PLAN. This Plan may be amended by the Committee from time to time to the extent that the Committee deems necessary or appropriate; provided, however, no such amendment shall be made absent the approval of the shareholders of the Company if such amendment: (a) increases the number of Shares reserved under Section 3, except as set forth in Section 10, (b) extends the maximum life of the Plan under Section 9 or the maximum exercise period under Section 7, (c) decreases the minimum Exercise Price under Section 7, or (d) changes the designation of Participant eligible for Stock Incentives under Section 6. Shareholder approval of other material amendments (such as an expansion of the types of awards available under the Plan, an extension of the term of the Plan, or a change to the method of determining the Exercise Price of Options issued under the Plan) may also be required pursuant to rules promulgated by an established stock exchange or a national market system.




TERMINATION OF PLAN. The Board also may suspend the granting of Stock Incentives under this Plan at any time and may terminate this Plan at any time.




AMENDMENT OF STOCK INCENTIVES. The Committee shall have the right to modify, amend or cancel any Stock Incentive after it has been granted if (a) the modification, amendment or cancellation does not diminish the rights or benefits of the Participant under the Stock Incentive (provided, however, that a modification, amendment or cancellation that results solely in a change in the tax consequences with respect to a Stock Incentive shall not be deemed as a diminishment of rights or benefits of such Stock Incentive), (b) the Participant consents in writing to such modification, amendment or cancellation, (c) there is a dissolution or liquidation of the Company, (d) this Plan and/or the Stock Incentive Agreement expressly provides for such modification, amendment or cancellation, or (e) the Company would otherwise have the right to make such modification, amendment or cancellation by applicable law. Notwithstanding the forgoing, the Committee may reform any provision in a Stock Incentive extended to be exempt from Code Section 409A to maintain to maximum extent practicable the original intent of the applicable provision without violating the provisions of Code Section 409A; provided, however, that if no reasonably practicable reformation would avoid the imposition of any penalty tax or interest under Code Section 409A, no payment or benefit will be provided under the Stock Incentive and the Stock Incentive will be deemed null, void and of no force and effect, and the Company shall have no further obligation in connection with such Stock Incentive.




Oct 28, 2008
Feb 7, 2006
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